Prosecution vs. persecution

Peter Laufer

Published
4:00 am PST, Monday, December 10, 2007

Shocked and sad is how I (and undoubtedly his devoted listeners at KGO Radio) felt when I heard about the serious criminal charges against my colleague Bernie Ward: "Internet child porn" is the shorthand The Chronicle headline writer used.

On Thursday, a grand jury indicted Ward - who is identified in all the stories about the case as a liberal talk show host and a former Catholic priest - for downloading child pornography from the Internet, sending it on to others in cyberspace, and discussing the material in Internet chat rooms. Bernie, through his lawyer, acknowledges he viewed pornography. He says he was researching a book.

"Everything I've done in my life has been with good intentions," he told the Chronicle after the charges against him were made public.

The problem for Bernie - his audience always refers to him by his first name - is that possession of child pornography is a felony no matter how good your intentions may be. But Internet technology - fast, easy to use, and intrusive - complicates what was once black and white.

Pre-Internet, you could be walking down Eddy Street in the Tenderloin and some creep might offer you pictures to look at. So perhaps curious, you go into the alley, look at the images, and then say, "No thanks. I don't want to buy that." Back then, the guy hustling the exploitation pictures was guilty of possessing pornography, but you - the potential buyer - were not guilty of a crime for taking the images in your hand, glancing at them, and then giving them back to the smut purveyor.

With the aggressive assault of pornographic advertising on the Internet, along with the sting sites put up by the FBI and other police authorities, it is easy to see how anyone could trip into crime out of curiosity, especially when a simple click of the mouse now defines possession in the brave new world of the Web.

Note, please, that I loathe kiddie porn. But I do not understand how looking at an offering of anything in print (or on a screen) can, by itself, constitute prosecutable criminal behavior. It seems a direct conflict with the First Amendment. In fact, a quick glance is allowed by current law: accidental discovery of as many as three Internet child pornography images won't trigger prosecution as long as you report what you saw or destroy the pictures immediately.

That said, if Bernie's story is correct, it is odd that he was so naive as to think what he was doing couldn't haunt him - even as journalistic research. But what would be the safe method for a lifelong journalist like me to report on this, or any similar story, without inherently running the risk of arrest? How could a reporter document the trafficking of Internet child pornography without risking self-incrimination? Would he have to get some sort of waiver from the U.S. attorney and work with the prosecutor's blessings?

Journalists in a free society must be able to enjoy the freedom to practice their profession independent of government oversight. Intent must be a factor in a criminal investigation that conflicts with a reporter's research.

Concurrent with the charges against Bernie Ward was the revelation by the U.S. Border Patrol that its agents discovered yet another illegal tunnel under the Mexican-U.S. line, allegedly used by drug smugglers to bring massive amounts of marijuana into California. The portal on the U.S. side is just a block from the Tecate Border Patrol office. Agents found a sophisticated engineering project: a reinforced ceiling, electricity from the Mexican side provided lighting, pumps kept water seepage to a minimum.

Since Sept. 11, 2001, 56 such tunnels have been discovered by authorities, and destroyed. As a result, a new federal law makes it a crime to design or build a tunnel under a U.S. border. Of course it makes sense that it is against the law to tunnel under an international line. But to outlaw designing a tunnel - or designing anything? Again, this probably well-intentioned attempt to deal with a growing societal problem crashes head-on into the First Amendment.

A law against designing a tunnel is a thought crime. Conjuring the tunnel project is not an overt criminal act. Intent should be the central issue. It must make a difference if I design a tunnel for a thriller film on drug smuggling, to create a scene in a book I'm writing, to amuse my engineer friends - or to bring 14,000 pounds of dope into America (the amount found at the Tecate tunnel).

Especially in this era of understandably heightened concerns regarding national security, we must be ever-vigilant against a creeping police state - no matter how well-intentioned the cops and the legislators in our midst.

I pray Bernie Ward's intent was journalistic not prurient. He's been most gracious to me when he's invited me to appear as a guest on his KGO radio program. Station management took him off the air until further notice once the charges against him were made public with the tepid announcement, "We were just recently made aware of these serious charges and are surprised and concerned by their nature."

But more important than Bernie's personal crisis, it is critical that we Americans come to terms with our post-9/11 paranoia. We must join with fellow citizens worried about cascading government intrusion into the private lives of American citizens - those concerned citizens can be found on both sides of the political aisle and in law enforcement. We must perpetually defend the Constitution and the Bill of Rights - and our promise of life, liberty and the pursuit of happiness.